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A constitutional moment for Europe

The outcry over the barrage of laws that Hungary passed before Christmas has focused on three that the European Commission believes may infringe EU legislation.

One is about the judiciary, including a lowering of the retirement age and the right of a prosecutor to choose a judge. The second law appears to infringe the independence of the central bank, and the third the independence of the data-protection authority.

But to focus on the Commission’s objections is to understate the challenges to EU law that Hungary poses. An astonishing 8,000 individual claims have been filed with the European Court of Human Rights (ECHR), most of them because of Hungary’s nationalisation of private pensions. In addition, the Council of Europe has called on the Hungarian government to revise its new law on the right to freedom of conscience and religion, which it argues breaches Article 9 of the European Convention on Human Rights. The law is stripping more than 100 religious organisations of their status as religious communities or de-registering them as religious organisations. Hungary has yet to revise the law in a satisfactory manner.

These questions touch on legal principles that underpin both the EU and the Council of Europe, principles adopted in response to the horrors of Europe’s authoritarian past. Article 3 of the Council of Europe’s statutes requires a member to accept the “principles of the rule of law, and the enjoyment by all persons […] of human rights and fundamental freedoms”. Similarly, Article 2 of the EU Treaty demands “respect for human dignity, freedom, democracy, equality, rule of law and […] human rights including the rights of minorities”. These two sets of obligations are further merged in the recognition of human rights as fundamental principles of EU law, and the EU’s imminent accession to the European Convention of Human Rights itself.

These clauses, and the laws derived from them, have helped steer European states away from their fascist and communist pasts and into the EU. Hungary, though, represents the first real challenge by a current member of the EU to the efficacy of its laws as a buttress against a state’s drift to authoritarianism.

Hungary now faces the prospect of losing in two courts: the European Court of Justice, which rules on issues deemed to be infringements of EU law by the Commission; and the ECHR, to which individual Hungarians have turned.

Beyond that, it risks organisational sanctions. The Council of Europe, under Article 8 of its statutes, can suspend a country’s right of representation at its committee of ministers – and, if need be, expel it.

The EU can invoke Article 7 of the EU Treaty, to suspend “certain of the rights” deriving from EU membership – a safeguard introduced in response to the entry of the far-right Freedom Party into an Austrian coalition government in 2000. Article 7 expressly mentions the loss of voting rights, but, in our view, the EU would also be able legally to cut Hungary off from the internal market and other privileges of membership.

It may be that political pressure from other member states and the European Parliament, and financial pressure from creditors (chiefly, the International Monetary Fund, the European Central Bank and the European Commission) will prompt Hungary to amend its laws.

These legal and organisational sanctions against breaches of fundamental values are weapons of last resort. They provide two reasons for optimism. Firstly, they amount to a full battery of legal instruments that could serve as compliance mechanism. Secondly, the Article 7 procedure available to the EU can be informed and reinforced by these other legal instruments, making Article 7 more effective should it come into play.

Dag Sørlie Lund is a specialist in EU law at Steenstrup Stordrange, a Norwegian law firm. Erlend Leonhardsen is a research fellow in the faculty of law at the University of Oslo.